When someone dies, probate is the legal process by which the financial and legal matters of the estate are handled. The probate court oversees the validity of any existing will and the assignment of a personal representative, sometimes called an executor, who will manage the process. The probate court will also oversee the disposition of any assets or property left behind, including the paying of any debts, fees, and taxes, as well as the distribution of remaining assets to the heirs.
If someone passes away with a valid will, the probate process may be shortened considerably or even avoided entirely in certain cases. Good estate planning can help with this, and it can ensure that the beneficiaries receive their shares faster, with fewer legal fees. When complicated estate issues arise, there is no will, or there are disagreements involved, probate court is the definitive legal means by which matters are settled.
The Role of a Personal Representative in the Probate Process
Probate starts when a personal representative is either named in a will, chosen by the heirs, or appointed by the court. The personal representative has a number of responsibilities in order to finalize the estate and will be expected to:
- File a petition for probate. A petition for probate must be filed, including a will, if it exists. A probate attorney is not required for this, but one can help with the paperwork. The personal representative will also be required to take an oath stating his willingness to lawfully act only in the best interests of the estate.
- Make an inventory of assets. This may include personal property as well as assets such as cash, investments, bonds, real estate deeds, property titles, safety deposit box contents, and any other solely owned property. Appraisers may be required to determine the value of items for which a value is not readily apparent or as required by law.
- Publish a “Notice to Creditors” in the newspaper. This notice must be published in a local paper for at least four months, and all assets must be frozen during this time. This step may be done as the inventory is made to save time.
- Pay any debts the estate owes. This can include paying any relevant taxes, fees, expenses, or claims by creditors. This typically takes about a month.
- Distribute any remaining assets. With a judge’s approval, any remaining cash or property will be distributed to the heirs or beneficiaries either as defined in the will or following the probate court’s rules of succession. This process also typically takes about a month, but it may take longer depending on how complex the distribution is.
How Long Does Probate Take, and Can I Avoid it?
Going through probate can be a lengthy process, but recent changes to the laws have shortened the time it takes, with the least complicated estates taking from six to nine months on average. Before any assets are distributed, there is a four-month period for the creditor notice to be published. Inventory and appraisals, paying creditors, and the final distribution of assets to beneficiaries also add months to the process. Issues such as the will being contested, disagreements about property or assets, complicated title transfers, or complex tax problems can also delay the closure of an estate.
In Washington, the full probate process is not strictly required in every case. However, if there is a will, the will must go to probate to be considered valid. There are three notable exceptions to this rule:
- If there was a community property agreement with a spouse, assets can be directly transferred to that person.
- If the decedent had equal to or less than $100,000 in assets when he or she passed away, probate may not be required, provided certain conditions are met and an affidavit filed.
- If a trust was prepared by the decedent before he or she passed away, probate may be bypassed.
An experienced estate planning attorney can help determine if your estate meets any or all of the requirements to be exempted from the probate process. Additionally, an attorney can help you plan your estate to avoid probate should you decide it would be beneficial to do so.
At the Law Offices of Molly B. Kenny, we have skilled estate planning and probate lawyers with over 24 years of experience. Our skilled attorneys can help make sure your family is cared for when you’re gone or help you manage the estate of someone who has died. Call us at (425) 460-0550, or leave us a message via our online contact form.